R v Gould

Agreed Facts

1. The Agreed Facts form part of Exhibit A. Regrettably, they relate to both Offenders and therefore may cause some confusion. Given that my voice is about to break by reason of a medical condition from which I have recently suffered, my Associate will read onto the court record the agreed facts agreed between the parties.
2. In relation to the Co-Offender, Maria Virgili, my Associate will refer to her as the Co-Offender. In relation to Ms Gould, she will be referred to as the Offender.

Count 1 - Victim Robert Sullivan

1. The victim Robert Gary Sullivan, now aged 76 years old, resided alone in a single level cottage in Chittaway Bay. He retired from work in 2007 and at that time he owned his own home and had in excess of $300,000 in cash in the bank.
2. On the afternoon of the last Sunday in March 2014, the victim was waiting to order lunch at Club Tuggerah when he was approached by the Offender. They had a brief conversation whilst waiting to order food and the victim was also introduced to the Co-Offender.
3. After the victim completed his lunch, he was again approached by the Offender who asked for his phone number. Later that week, the victim received a call from the Offender who invited him to The Entrance and then later for lunch at Toukley Golf Club. He met the Offender and another unidentified female for lunch before returning home.
4. Later that week, the victim was called again by the Offender who told him that the lady they had lunch with at Toukley Golf Club wants $8,000 to get away from her husband. The victim advised that he could go to the bank the following morning and withdraw the money and the Offender arranged to meet him in the car park at Westfield Tuggerah at 11am.
5. The victim withdrew the money from his Commonwealth Bank savings account, placed the money in an envelope and met the Offender in her vehicle before handing her the envelope. The Offender informed the victim that she would pay him back at $400 a fortnight; however, she never made any attempts to re-pay the money.
6. A few days later, the Offender called the victim and asked him if he was interested in going on a holiday to Fiji. The victim stated, "That's sounds fine, let me know what the cost will be", believing that everyone would pay their own costs. About a week later, the Offender called the victim and informed him that the accommodation and flights had been booked. The Offender told him that the holiday would cost $10,500 plus money for expenses and then said, "You're a nice man, aren't you, you can pay for that, can't you?" The victim told her, "I guess I can".
7. About two weeks later, the Offender arranged for the victim to meet her at Westfield Tuggerah to pay for the holiday. The victim withdrew $12,500 from the Commonwealth Bank at Tuggerah and again placed the money in an envelope which he handed to the Offender within her car in the car park. The victim stated that he thinks that the Offender, Co-Offender and himself travelled to Fiji on the last Sunday of April 2014.
8. The flight was to leave very early in the morning and so arrangements were made to stay in Sydney for two nights prior to their departure. The Offender booked the motel which the victim paid for. The Offender, the Co-Offender and the victim then spent two weeks in Fiji staying in Smugglers Cove Resort for one week before spending a week in Suva at the house of one of the Offender's relatives. The victim paid for all the expenses and spending money associated with the holiday.
9. Following the holiday, the victim met up with the Offender on a few occasions socially. She began regularly contacting the Offender and requesting money from him for various reasons including an eye operation for $2,500 and for rent for $3,000.
10. The Offender called the victim on many occasions and asked for money. He was unable to recall all the exact occasions or amounts. The victim states that the Offender asked for money many times and he felt overwhelmed by those circumstances. At one time, the victim said, "You've got the wrong impression if you think I'm going to hand out money all the time" and the Offender responded, "Well, you're a good man and you're going to give me the money".
11. Some months after he first met the Offender and the Co-Offender both Offenders attended the victim's residence uninvited. The victim states that they rushed in and started looking around his home. The Co-Offender went into the smaller two bedrooms where the bookshelf and wardrobe were located whilst the Offender was in the lounge room. After they left, the victim realised that his Newcastle Permanent Building Society bankbook was missing from where he always kept it on the third shelf in the wardrobe sticking out at the front of his shirts. Sometime later, the victim informed the Co-Offender, "I don't have any money". The Co-Offender told the victim, "You have $104,000 in Newcastle Permanent. The victim asked the Co-Offender how she knew that and was advised, "I know somebody that works there".
12. A number of times over the following weeks, the Co-Offender mentioned the money the victim was supposed to have in the Newcastle Permanent Bank account. The victim states that he cannot recall exactly the amount of money he had in the account when the bank book went missing but believes that he would have had approximately $104,000 at that time.
13. The victim states that he continued to give money as per her demands up until around October 2014. At this time, the Offender's request for money decreased, however, from early August 2014, the Co-Offender commenced contacting the victim and requested money from him and her requests for money increased.
14. In early August 2014, the Co-Offender called the victim. She was crying and told him, "My car has broken down, I cannot afford to get it fixed. I need my car. I need money to get my car repaired".
15. A short time later, the Co-Offender called the victim and told him she had been harassed by male tenants in her unit block and needed money to pay off rent and pay bond for the new rental residence. The following day he withdrew $3,000 from his rapid saver account at the Newcastle Permanent Building Society and provided the money to the Offender at a pre-arranged location at Wyong. The Co-Offender told the victim, "You're a good man, I'll pay you back when I get my job back at the Wyong Leagues Club". At the relevant time, the Offender and Co-Offender owned and resided in their own home.
16. About three months later, the Co-Offender again called the victim and told him, "There is something wrong about this place. I feel like I am being watched all the time". She was referring to the new residence she was apparently renting. She told the victim, "I need to get out of here and find a new place".
17. The victim withdrew $4,000 from his previously mentioned Newcastle Permanent banking account and provided the money to the Offender at a pre‑arranged location at Wyong. At the relevant time, both Offender and Co-Offender owned and resided together in their own home.
18. About three weeks later, the Co-Offender again called the victim and said, "I've been told I had cancer and I need to have an operation. I've got between three and six months to live". She told the victim that the operation would cost $20,000 which she needed within a week.
19. Arrangements were made for the victim to withdraw the cash in two separate $10,000 withdrawals on consecutive days. After each withdrawal he was met in the car park by the Offender and handed her the cash.
20. On the date of the second withdrawal, the Offender informed the victim, "We put you down as a guarantee for the operation. Insurance is going to be five grand. We need another $5,000". The victim agreed to withdraw the money the following day. He withdrew $5,000 from Newcastle Permanent Building Society at Tuggerah the following morning before providing the cash to the Offender in the car park.
21. About four days later, the victim caught public transport to John Hunter Hospital and spoke to the receptionist asking to see the Co-Offender who he had believed had been admitted for her cancer operation. The victim was told that there was nobody in the Newcastle hospital system by that name.
22. The victim then travelled to Wyong Hospital, however, was again told that there was no one by that name on the Central Coast hospital system. The victim felt stupid and embarrassed that he had been tricked by the Co-Offender in that way. Inquiries with Hunter New England Health and Central Coast area health revealed no records of the Co-Offender attending or being admitted into any hospital in those areas for treatment of any type at the relevant time.
23. A few days later, the Offender contacted the victim and invited him to Wyong Leagues Club. The victim met the Offender and the Co-Offender at the club, however, did not speak much to them as they were listening to the music. Eventually, the Offender and the Co-Offender left the club without saying goodbye.
24. A few days later, the victim was again contacted by the Offender who invited him to the Memorial Park at The Entrance for a barbecue. Whilst there, the victim asked the Co-Offender, "How did the operation go?", however, the Co-Offender did not respond.
25. The victim asked her, "You wasn't at hospital, was you?" However, again, she did not respond. The victim did not continue to question her. A month later after this occurred, the Co-Offender again asked the victim to deposit $3,000 into her account. He complied. The victim maintains that he only provided the Co-Offender and the Offender with money due to the stories of hardship that they told him and a desire to help them out. He also states that he believed that the Co-Offender was his soul mate.
26. By June 2015, the victim had depleted all monies in his savings account and had taken out a $40,000 mortgage against his home. The victim seeks restitution of monies from the Offender in the amount of $18,000 which has been the subject of the compensation orders.

Count 2 - Victim Henry Wall

1. The victim, Henry Wall, born 28 December 1921 and now deceased resided alone in a mobile home in the Meander Village Lifestyle Park at 18 Boyce Avenue, Wyong. His only source of ongoing income was a pension from Centrelink. He had two active bank accounts, a St George account which as at May 2014 had a balance of $40,629.37 and a Bendigo Bank account which as at 14 May 2014 had a balance of $1,512.46.
2. The Offender is a woman of Indian descent with distinctive white pigmentation on her face. On 7 February 2014, the Offender and Co-Offender purchased a relocatable home at the Lifestyle Park.
3. The Offender introduced herself to the victim as Sylvia Black and her friend's name was Louise. The victim states, "She told me her name was Sylvia Black and that she didn't live in the village. She had a friend, she was younger, maybe about 30." The victim describes the woman he knows as Sylvia as short with a solid build with pigmentation on her face.
4. About 5.45pm on 13 May 2014, the Offender knocked on the door of the victim's home and said, "I was a cleaner at Bankstown Hospital and met you there in 2008. You gave me your address." The victim had never met the Offender before and had only resided at his current Meander Village address from 2010. The victim wondered why the Offender was being so friendly and said to her, "If you're coming here for sex, you've come to the wrong place". The victim later told police, "I don't know how she got that information. My wife was ill in Bankstown Hospital a long time ago. Maybe she overheard me having a conversation at the club I went to".
5. The Offender said, "I need some urgent repairs on my car, can you lend me the money?" The Offender told the victim that she needed $900. On 15 May 2014, the victim attended the St George Bank at Westfield, Tuggerah and withdrew $450. He gave this money along with a further $450 which he had in the draw of his mobile home to the Offender. The bank records of the victim confirm this withdrawal.
6. On a couple of occasions, the Offender offered to cook dinner for the victim and clean his house without asking. On 16 May 2014, the Offender told the victim that she needed to bring her furniture up from Sydney. The victim withdrew $700 from Bendigo bank in Wyong and gave it to the Offender. The bank records of the victim confirm this withdrawal.
7. The next time the victim saw the Offender she attended the victim's residence and said she needed $4,500 for bond money and 12 months' advance rent. The victim questioned why she needed the money and the Offender drove the victim in the car to show him the house she was going to rent. The victim cannot remember the address.
8. On 19 May 2014, the Offender drove the victim to a bank location near Lake Macquarie. The victim told the Offender that he did not have his bank book, however, she advised him that he could still withdraw money using photo identification. The victim withdrew $4,500 from his St George account. He gave it to the Offender.
9. The Offender owned and lived in the relocatable home in the Meander Village Lifestyle Park at that time and the bank records of the victim confirmed this withdrawal.
10. In response to the Offender's continued requests for money, on 20 May 2014, the victim withdrew $5,000 from his St George account and gave it to the Offender. On 22 May 2014, he withdrew $4,000 from his St George account and gave it to the Offender. On 23 May 2014, he withdrew $5,000 from his St George account. On 23 May 2014 he withdrew a further $800 from his Bendigo Bank account and gave both amounts to the Offender. The bank records confirm the withdrawals.
11. During this time, the victim recalled the following conversation with the Offender. The Offender asked him, "When are you going to the police?" The victim said, "I'm not, why?" The Offender said, "Well, if you go to the police I will ring your daughter and tell her what we did in the bedroom". The victim said, "It's the truth that nothing happened, you tell her whatever you want. They won't believe you".
12. On 26 May 2014, the Offender told the victim that her friend, Louise, needed money to buy a car. The victim withdrew $35,000 from his St George account and gave it to the Offender. The bank records confirm this. On 29 May 2014, the Offender asked the victim for money on several occasions. The victim initially refused, however, eventually agreed and withdrew $5,000 from the St George account and gave it to the Offender. He could not recall the reason that the Offender said she needed money on this occasion. The bank records confirm this withdrawal.
13. On 30 June 2014, the Offender was driving the victim in her car. She asked the victim for more money but he refused. The Offender said to the victim, "If you give me another $4,000 I will pay the loan that I've got and they will give me a cheque for $25,000". The Offender also said, "You better give me the money or I will stop the car. We are halfway to Newcastle, it will be a long walk back for you".
14. The victim became concerned as he had no money on him to make his way back home. He eventually agreed to give the Offender money and withdrew $4,500 from the St George account. He gave $4,000 of this money to the Offender on the understanding that she could then repay the money owed to him. The bank book of the victim confirms this cash withdrawal.
15. On several occasions following this incident, the Offender told the victim that she had arranged for the bank to pay him back by cheque, however the victim was never repaid any of the money owed to him by the Offender.
16. On 3 June 2014, the victim was admitted to hospital with a chest infection. Whilst in hospital, the victim told his daughter that he had given a lot of money to a woman named Sylvia and that she always claimed that she would pay him back. On the last occasion the Offender told the victim that if he gave her the requested money she could finalise her account and would receive a cheque for $25,000 and would be able to pay him back the money she owed him.
17. The victim told his daughter that Sylvia often rang him and told him that she had moved to Darwin and told him if he paid her fare she would come down and see him. The victim also told his daughter that on one occasion this Sylvia called him to find out where he had been as he was visiting a friend in the city. Sylvia asked the victim the name of his friend and explained that she also knew that man and asked the victim for his friend's phone number. The victim did not provide the Offender with that number.
18. The victim was later advised that the Offender actually resides in the Meander Village. The Offender had always met and collected the victim in her vehicle outside on the road and led him to believe that she lived elsewhere. The victim made statements to the police on 7 July 2014 and 28 October 2015. The victim described the Offender being short with a solid build. She had pigmentation on her face.
19. Michelle Lindeman states that the victim lives on minimal money spending approximately $30 a week on food and occasionally attending Friday night raffles at the local club. She states that the victim has not made any large purchases or spent money on any holiday and she cannot account for the large withdrawals made from his account.
20. Tracey Waugh who is the manager of the Meander Village Lifestyle Park confirms that the sale contracts for the relocatable home purchased by the Offender has both the Offender and the Co-Offender's name on it. Mr Wall provided a copy of the receipts dated 6 February 2014 and 7 February 2014 confirming that the relocatable home was paid for by way of bank cheque received from Chevana Gould and the Offender.
21. Anthony Orr says the Offender was in Wall's unit on the occasion June 2014 when the ambulance was called and the victim was taken to hospital.
22. The Co-Offender has provided a statement indicating that she has been in a relationship with the Offender for 13 years. She confirms that the Offender is a heavy gambler who goes to the club nearly every day. She states that she does not know the victim, however, she knows that the Offender was visiting him and she was helping him. She was doing some cooking and cleaning for him.
23. The Co-Offender stated that she has not purchased a new car this year, however, the Offender purchased a new vehicle May 2014. She confirmed that Aruna (the Offender) always has money.
24. The Offender was arrested on 11 December 2014. She participated in an ERISP where she denied any involvement in the allegations and made the following comments that she knows the victim just through the Park: 1. "One day he was very sick, he needed an ambulance and he just called out. I was walking past his house I called the ambulance for him. That is the only day I met him and I've got nothing to do with him. She suggested that he could be taking it out for his living, that being the money. I don't know anything about that. I don't know why that I am the blame of the money"; 2. she stated that she is the sole owner of the property in Meander Village. The Co-Offender does not have any share of the ownership; 3. her relationship with the Co-Offender is friendship; 4. she "had been hearing rumours that this man here was having an affair with an Aboriginal lady and there was sex involved and all that so this is what I'm going to be up to. He is a very dirty old man. He asked a woman if he can have sex but he doesn't get an erection or whatever because he is over 90 years old and all that so this is what story is going around the Park so it could be that woman"; 5. "I have been on the disability pension for 15 years now about $900 a fortnight"; 6. that she had never used the name Sylvia Black; 7. She had never had to repair her red Ford vehicle; 8. she was not required to pay a bond prior to moving in Meander Village; 9. that "they hate me there because her colour that's she's Indian and some people are racist"; 10. she confirmed that there was absolutely nobody in the Village that she associates with; 11. she has never been to lunch with anybody and has never visited in other people's homes; 12. when she purchased her RAV 4 she got $4,000 worth of trade-in for the Falcon and paid $30,000; 13. she goes to clubs not very often, maybe once a fortnight; 14. she agrees that she sometimes carries large amounts of money in her pocket, sometimes about $2,000; 15. she only has $900 in the bank from her pension that went in on Tuesday; and 16. she has never taken any friends from outside the Park to the club.
25. Member's points summary from Doyalson RSL Club confirms that from 9 May 2014 to 15 December 2014, the card had turnover from EMG sessions for the Offender was $166,092.15. Player activity statements from Wyong RSL Club showed that during May 2014, the Offender's total gaming machine turnover was $2,331.72 with a net win of $1,169.92; the June total gaming machine was $40,242.81 with a net with of $1,355.47; July being $21,691.30 with a net win of $2,126.37; August being $31,743.25 with a net win of $4,607.48; September being $24,890.20 with a net win of $4,775.99; and October turnover being $62,996.03 with a net win of $3,677.37.
26. The bank account relating to the Offender's only bank account during 2014 confirmed that her only source of income was a Centrelink pension of $846 per fortnight and that she does not have any significant savings.
27. The estate of Mr Wall seeks restitution of monies withdrawn in the amount of $33,400.
28. The only additional fact is that the total amount spent gambling by the Offender in the periods referred to therein was over $300,000.

Objective Seriousness

1. The Crown has been of assistance to the Court by providing a summary of the offending as not all of the amounts of money paid by the Offender fall foul of the offence provision pursuant to which she has been charged. That is to say that some amounts were paid which were not the subject of deception.
2. MFI 2 sets out a summary of the amounts referred to in the offences and in relation to the victim, Mr Sullivan, the Offender took from him in breach of the relevant section of the Crimes Act, the sum of $18,500 between about March 2014 and about October 2014.
3. In respect of the victim, Henry Hall, the Offender took from him in breach of s192E a total sum of $33,400 during the period approximately 15 May 2014 through to around June 2014.
4. As I have already observed although those sums in relative terms may not be significant they are substantial amounts of money to two retired men who were not in receipt of income.
5. A predominant factor relevant to sentence is, of course, the objective seriousness of the offending. It is not, however, necessary not indeed often possible to articulate a determination by placing the offending along a hypothetical range. There remains an essential task trying to take and evaluate assessment of the objective seriousness of the offending.
6. The starting point, of course, is the legislative guidepost to which I have already referred namely the maximum period of imprisonment in respect of both counts being ten years. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.
7. It was submitted on behalf of the Offender that the objective seriousness of the offending fell in the low to mid-range. I only partially agree. In my opinion, the offending falls well and truly within the mid‑range of offending for this time having regard to a number of factors and circumstances which I will refer to in a moment.
8. In considering this question, the Court may have regard to any aggravating or mitigating circumstance particular to the offending and the Offender. The former to be proven beyond reasonable doubt and the latter to be proven on a balance of probabilities.
9. The aggravating factors which I find exist in the present case include that the Offender has a record of previous convictions. Whilst that factor is referred to in terms in the written submissions of counsel for the Offender, in oral addresses he sought to reduce the effect of that submission as an aggravating factor to the effect that it simply meant that she, that is the Offender, is not entitled to a finding of good character. In terms of the prior offending, I note that by way of indictment the Offender was charged on 2 June 2009 that between 7 January 2008 and 15 January 2008 at Hillsdale and elsewhere in the State of New South Wales with menaces did demand money namely $25,000 in cash from Harold Lindsay Johnstone with intent to steal the money. That indictment formed part of Exhibit A.
10. The agreed facts on sentence in relation to that matter are also included in Exhibit A. It is apparent from the facts as agreed on that occasion that the victim of the Offender's behaviour in 2008 was approximately 80 years of age. Whilst the offending was similar in terms to the present offending in that the Offender took advantage of an elderly person for financial gain, the exact circumstances surrounding that offending were in a sense more egregious in that the Offender made threats against the victim and indeed took from him an amount well in excess of the amount referred to on the indictment.
11. That is the prior offending to which the Court has regard. I note, in addition to that, the Offender has previously been convicted of being in possession of stolen goods, common assault, larceny, drive with a low range PCA, again, common assault and, again, drive with a low range PCA. All of those other offences are relatively minor in nature. The offence that occurred in 2008 resulting in the conviction in 2009 is of sufficient similarity to the present offending to aggravate the conduct of the Offender. In any event, and at the very least, it disentitles the Offender to a finding of good character.
12. Returning to the submissions on behalf of the Offender, it was initially suggested that the offences were committed in company. The Crown, quite properly, did not make that submission but rather suggested that some of the offending took place in the company of the Co-Offender which indicated a degree of organisation between those persons but it is not submitted by the Crown nor by the Offender that the offences were committed in company within the meaning of subsection (e) so as to aggravate the subject offending. Accordingly, I decline to make such a finding.
13. The next matter referred to by the counsel for the Offender was that the offences were committed in the home of the victims. He referred in oral addresses the Court to a decision of the Court of Criminal Appeal in the matter of Ingham v R [2011] NSWCCA 88 where a distinction was made as the Offender in that case and the victim in that case lived in the same house. In the circumstances which exist here, the Crown has pointed out that only some of the offending in relation to the second victim occurred in the home with the majority of the offending occurring outside of the home. I do not consider that to be of sufficient moment to warrant the aggravation of the offending.
14. The next matter which, again, quite fairly, has been conceded by counsel for the Offender as an aggravating factor is the second offence was committed while the Offender was on conditional liberty.
15. It is further submitted by counsel for the Offender that the Court might consider the victims vulnerable because of their age although in oral addresses counsel for the Offender suggested that the first victim was not elderly. I note that Mr Sullivan is now 77 years of age and at the time of the offending would have been in the order of 72 or 73 years of age which I consider entitles him to a finding of vulnerability.
16. In relation to the victim, Mr Wall, I note that were it not for the fact that he has since deceased, he would be 98 years of age meaning at the time of the offending he would have been in the order of 93 to 94 years of age. He was an extremely vulnerable gentleman in respect of whom the Offender took advantage. That entitles the Court to have regard to that factor as an aggravating factor within the meaning of s21A(2)(l) of the Crimes (Sentencing Procedure) Act.
17. It also was raised as a possible aggravating factor that the offences involved a series of criminal acts. That is plainly the case. The two charges are rolled up as they relate to each of the two victims but relate to a number of separate offences in that the attaining the financial advantage by deception occurred on a number of occasions in the periods referred to that is also an aggravating factor.
18. Consideration was given as to whether the offences were part of a planned or organised criminal activity. In my view, the degree of planning and organisation was limited. The fact that it occurred on a number of occasions, of course, suggests that there was some degree of planning and organisation but I do not consider that it aggravates objective criminality substantially.
19. It was also raised by counsel for the Offender that the offences were committed for financial gain. Quite properly, counsel for the Crown did not seek to rely upon that as an aggravating factor it being implicitly an element of the offending and, accordingly, that is not adopted by the Court as being an aggravating factor.
20. In relation to mitigating factors pursuant to s21A(3), counsel for the Offender initially raised four matters, only one of which, being the Offender's late plea of guilty, ultimately was pressed. The first is that the Offender was unlikely to re-offend. Were that submission pressed, I would have rejected it.
21. The second was the Offender had good prospects of rehabilitation. Again, were that pressed, I would have rejected that submission.
22. Next, that remorse had been shown by the Offender for the offences. I have no hesitation in rejecting that submission had that submission been pressed. In fact, the Offender has shown complete disregard for the welfare and harm caused to the victims by her blatant advantage she took of them.
23. Having regard to all of those matters, I consider that the objective seriousness of the offending falls in the mid-range.

Subjective Case

1. In considering the Offender's subjective case, I have had regard already to the previous offending. I also note that since she was charged in relation to the counts currently before the Court, she engaged in a similar episode where she sought money from another person, a male aged 86 who refused her money resulting in the Offender kicking him in the groin area. As a result of that event which occurred on 18 March 2018, she has been charged with common assault and that matter is before the Court for sentence on 4 February 2019.
2. Further information concerning the Offender is provided by the Sentencing Assessment Report (Exhibit C). It describes her family arrangements and the fact that she has a positive relationship with her daughter and her three year old grandson. She has minimal contact with her family residing in Fiji.
3. The report states that the Offender reported being unemployed for an extended period of time and in receipt of government benefits. My understanding from other material before the Court is that the Offender has not been employed since moving to this country.
4. Under the heading, "Attitudes", the following appears in the Sentencing Assessment Report: "Ms Gould rationalised her offending behaviour by reporting the money she received was a gift. Ms Gould reported that she befriended and/or had intimate relationships with older men to support her gambling addiction".
5. Whilst there may be some truth in the latter statement, the first part of that statement is completely false and plainly designed by the Offender to minimise the degree of her offending. To suggest that money taken from the victims of her offending could be considered a gift is abhorrent and offensive.
6. Under the heading, "Insight into Impact of Offending", the following appears: "Ms Gould demonstrated an absence of insight into her offending behaviour claiming she is the victim of these offences; she apportioned blame to the victims and does not acknowledge any involvement in these offences; and Ms Gould disclosed that since being charged with these offences she has experienced suicidal thoughts and symptoms of depression".
7. Leaving aside the last point, the statements made by the Offender in the first points are, again, abhorrent and demonstrate a complete ignorance on her part as to her behaviour and are both insulting to the community and to the victims of her conduct. The report goes on to refer to a risk of alcohol abuse, which is of no particular significance.
8. She was assessed as being of the medium risk of re-offending according to the usual tests adopted by Community Corrections in making that assessment. It was suggested she would be suitable for community service work but I do not consider that to be an appropriate sentence outcome.
9. In the Offender's case, she relied upon a report by Dr Nielsen, psychiatrist, dated 4 October 2018 (Exhibit 1). The difficulty with this report as indeed with evidence of this type is that it suffers from the absence of sworn, tested evidence. The history provided by the Offender to the psychiatrist is only as reliable as the Offender is herself. She has demonstrated through her fraudulent behaviour over the years that she is utterly unreliable and a person to whom acts of dishonesty come easily.
10. I am mindful of the comments made by the Court of Criminal Appeal in the matter of Imbornone v R [2017] NSWCCA 144 where at [57] it was stated: "This Court has frequently said that untested out-of-court statements made to third parties should be treated with caution although it should be a principle that is well known and understood, it seems necessary to re-state it. The following statements are derived from the authorities."
11. The Court of Criminal Appeal listed a number of, in fact five statements and principles. I will not refer to them verbatim, however, some of them are apposite in relation to this particular sentencing exercise.
12. First, although statements made to third parties are generally admissible in sentence proceedings, of course, subject to objection and rules of evidence, courts should exercise very considerable caution in relying upon them where there is no evidence given by the Offender. In many cases, such statements can be given little or no weight. I pause to note that I inquired of counsel for the Offender as to whether his client intended to give evidence in order to substantiate the statements made to the psychiatrist and other matters but she declined.
13. The second principle referred to in [57] of the judgment is statements to doctors, psychologists, psychiatrists, the authors of Pre-Sentence Reports and others were assertions contained in letters written by an Offender and tendered to the Court should all be treated with consideration circumspection. Such evidence is untested and may be deserving of little or no weight.
14. The third principle is that it is open to the Court to have regard to the fact that the defendant did not give evidence and was not the subject of cross‑examination. It is one matter for an Offender to express remorse to a psychologist which I pause to observe in this case she has not even done, quite another to give sworn evidence and be cross-examined on the issue.
15. The fourth relevant principle arising from this judgment is that if the Offender wishes to place evidence before the Court designed to minimise her criminality, it should be done directly in a form that can be tested.
16. In the circumstances which present here, all of the subjective material relied upon by the Offender is in an unsworn, out-of-court form, untested by cross-examination. Given the nature of the offences committed by the Offender and the history of her offending, I declined to place any weight upon the statements made by the Offender to Dr Nielssen.
17. In any event, Dr Nielssen's report does little to assist the Court in relation to understanding any psychiatric condition from which the Offender suffers which may be related to the offending although he diagnosed two psychiatric conditions comprising depressive illness and gambling disorder. He merely stated that the offending would appear to be related to financial difficulties arising from gambling which is hardly a persuasive opinion in that regard.
18. In addition, I have been provided with a statement from her daughter (Exhibit 2), a statement by her niece (Exhibit 3) and a statement by the husband of the Offender (Exhibit 4). I have taken those matters into account and treated them with the caution suggested by the Court of Criminal Appeal.
19. Some submissions were made about the gambling addiction which the Offender told some people she experiences. It may also be inferred from some of the Agreed Facts that she was a heavy gambler, however, the Agreed Facts relate to gambling that occurred some four years ago.
20. The relevance of gambling in sentencing, of course, is limited. I note the decision in the matter of Johnston v R [2017] NSWCCA 53 in which the Court held dismissing an appeal in relation to gambling, the fact that offences were committed to feed a gambling addiction will not generally be a mitigating factor at sentence, even where it is pathological. This is particularly so in cases where general deterrence is an important factor and the offences are planned and perpetrated over an extended period: [36]-[38] (Bathurst CJ); [76] (Johnson J); [77] (Fagan J).
21. The Court made a number of statements to the effect that gambling addiction will not reduce moral culpability and that it is not to be placed in a hierarchy of addiction including drug addiction such that it may lead to any mitigation of conduct. In any event, I note that counsel for the Offender did not rely upon gambling as being a mitigating factor and, of course, I decline to find it is such.

Remorse

1. The question of remorse arises in every sentencing matter. Having regard to the evidence which I have already referred, I decline to find genuine remorse in the Offender.
2. Remorse, of course, must be assessed in context. The most recent example of an opportunity to express remorse is in the report by the Sentencing Assessment Report (Exhibit C) dated 17 January 2019 where, as I have already noted, the Offender considered herself to be the victim of these offences. Such a comment is absurd and demonstrates not only just a lack of remorse but complete ignorance on the part of the Offender.

Character

1. The Offender's character is relevant. I find that the Offender is not entitled to a finding of good character.

General Principles

1. In approaching sentencing, of course, the Court must have regard to the purposes for sentencing set out in s3A of the Crimes (Sentencing Procedure) Act which include: 1. punishment, that is to ensure that the Offender is adequately punished for the offence; 2. deterrence. In matters such as this where innocent and vulnerable members of the community are taken advantage of by deliberate acts by criminals such as the Offender, the need for general and specific deterrence looms large. The sentence which I will impose will achieve deterrence on both levels; 3. the next is protection of the community from the Offender. There is no doubt that the community needs protection from this Offender, particularly, the community of vulnerable aged persons whom she has targeted in her offending over the years; 4. the next relevant consideration or purpose for sentencing is rehabilitation, that is to promote the rehabilitation for the Offender. Having regard to the evidence which informs the matter, I find that prospects of successful rehabilitation are virtually non-existent or, at best, low. Accordingly, a purpose for sentencing rehabilitation does not rate high on the scale of such purposes; 5. accountability is another consideration, of course, that is particularly pertinent in circumstances such as here where the Offender is ignorant to her behaviour and unremorseful; 6. the next purpose for sentencing referred to in the addresses by counsel for the Offender and in s3A is, of course, denunciation. There is no doubt that the conduct of this Offender is reprehensible and ought to be denounced by the Court for the reasons I have already referred to, that is that she set out to deliberately target and take financial advantage of vulnerable members of the community; and 7. the final purpose for sentencing is recognition, to recognise the harm done to the victims of the crime and the community. As previously observed, whilst the harm to the community in terms of the monetary sum is not substantial. There is no doubt that the harm to the victims of this Offender's conduct was substantial and, no doubt, life changing.

Instinctive Synthesis

1. In determining sentencing, the Court engages a process of instinctive synthesis having regard to both the objective factors and the subjective case. It is important that the sentence imposed should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances.

Imprisonment

1. In terms of imprisonment, I must be satisfied having considered all possible alternatives that no sentence including non-custodial sentences other than imprisonment is appropriate. In this case, the Crown submitted that the threshold under s5 of the Act has been met and that a term of imprisonment is warranted.
2. By inference, from the submissions made on behalf of the Offender to the effect that an ICO of three years would be an appropriate sentence outcome, it is also accepted by the Offender that the threshold under s5 has been met.
3. I find that after considering all alternatives, imprisonment by way of full time custody is called for in this case.

Guilty Plea

1. Of course, the guilty plea is a matter to which the Court has regard under s22 of the Crimes (Sentencing Procedure) Act and the Court has to take into account the following matters: 1. the fact that the Offender has pleaded guilty; 2. when the Offender pleaded guilty; and 3. the circumstances in which the Offender pleaded guilty.
2. Dealing with the timing of the guilty plea first, I note that the Offender was first arrested on 11 December 2014 and subsequently arrested on 18 August 2015. The guilty plea was entered almost three years later on 13 June 2018. In the interim, the trial had been listed to commence on 13 March 2017 and, no doubt, witnesses including the victims, the elderly victims of this offending were prepared for trial having provided statements and the like. The matter was then next listed for trial on 18 September 2017 when the matter again was not reached but, no doubt, involved the preparation of the matter for trial including the participation by the witnesses including the elderly victims of conferencing and the like.
3. Finally, the matter was listed for trial on 12 June 2018 after which, by way of negotiation, the matter was settled by way of a guilty plea to the charges now before the Court on 13 June 2018. Whilst it is conceded that a reduction in the sentence is appropriate, I should also take into account the strength of the Crown case which, on its face, appears to be quite strong.
4. The Crown submitted that the reduction for guilty plea should be in the order of 5%. It was submitted on behalf of the Offender that the reduction should be in the order of 15%. I reject the Offender's submission in that regard and accept the Crown's submission and I consider the discount of 5% is just and reasonable in the circumstances and will not result in a lesser or greater penalty which is unreasonably disproportionate to the nature and the circumstances of the offending.

Special Circumstances

1. Special circumstances is the next topic for consideration. It was submitted on behalf of the Offender that the Court ought to find special circumstances and, that is a discretionary matter.
2. Counsel for the Offender submitted that there was a combination of factors existing here which warranted the finding of special circumstances including the fact that this will be the Offender's first time in custody. Secondly, that she is 49 years of age and, thirdly, that she suffers a psychiatric condition and she has a need for a greater period of supervision on parole.
3. I do not consider the fact that there is a first time in custody to be of itself determinative of the question of a special circumstances finding and I do not rely upon that. I do not regard the Offender's age as relevant to a finding of special circumstances as at best she might be described as middle aged. In relation to her psychiatric condition, the only evidence in relation to the same is the report by the psychiatrist to which I have already referred and in respect to which I give little or no weight.
4. Accordingly, I decline to find special circumstances.

Consistency

1. Counsel for the Offender also provided the Court with statistics in relation to offending of this type and made submissions as to the relevance of same. In considering statistics, the Court, of course, must be careful not to place undue weight upon such information. I note the comments of the High Court in The Queen v Pham (2015) 256 CLR 550 where Bell and Gageler JJ in fact stated at [49]: "Statistics have a role to play in fostering consistency in sentencing and in appellate review providing care is taken to understand the basis upon which they have been compiled and provided the limitations are explained as per Barbaro, the value of sentencing statistics will vary between offences".
2. In this case, the statistics offered to the Court (MFI 4) relate to all Offenders, that is those who pleaded guilty and not guilty. It is unclear and it was suggested by counsel for the Offender that it gave rise to a range of head sentences between three and three and a half years.
3. It is unclear from the blank graph of statistics provided the number of offences to which the statistics related per Offender and indeed the number of guilty pleas involved in those statistics nor in fact is there any indication as to the degree of any discount upon a guilty plea. Accordingly, I find the statistics of limited value and I am more guided by the principal guidepost for sentencing, namely the maximum term of imprisonment.

Aggregate Sentence

1. In considering the sentence, I have decided to sentence the Offender to an aggregate sentence. I believe that is appropriate given the commonality between the offending that is the similarity of the offending in the relative temporal nature or timing of the offending. Nevertheless, I bear in mind considerations of concurrency and accumulation and indeed a combination thereof and I have designed a sentence which I believe reflects the total criminality of the offending which is just having regard to the sentencing principles and a sentence which I do not consider to be crushing.

Commencement Date

1. The sentence for the Offender will commence today, 31 January 2019 not having spent any time in prison prior to today.

Indicative Sentences

1. As I am giving an aggregate sentence, I am required, of course, to first give indicative sentences in relation to the two counts.
2. In relation to the first count, namely dishonestly obtain a financial advantage by deception of $18,500 from Robert Sullivan, were it not for the fact that I intended to impose an aggregate sentence, I would have sentenced the Offender to a period of imprisonment of three years which, after the discount of 5%, is a term of imprisonment of two years and ten months.
3. In respect to the second charge, namely dishonestly obtain financial advantage by deception of $33,400 from Henry Wall, were it not for the fact that I intend to impose an aggregate sentence, I would have imposed a sentence of four years which, after a discount of 5%, is a term of imprisonment of three years and ten months.

Imposition of Sentence

1. I determine that a total term of five years is just and appropriate in the circumstances and I decline to find special circumstances. Would you please stand, madam?
2. Ms Gould, you are convicted of the two offences on the Crown sentence summary, namely: 1. that between 20 March 2014 and 22 June 2015 at Chittaway Point in the State of New South Wales you did obtain dishonestly a financial advantage, namely $18,500 cash from Robert Sullivan in breach of s192E(1)(b) of the Crimes Act; and 2. that between 15 May 2014 and 30 June 2014 at Wyong in the State of New South Wales you did by deception dishonestly obtain a financial advantage, namely $33,400 cash from Henry Wall in breach of s192E(1)(b) of the Crimes Act.
3. For both convictions, I impose an aggregate sentence of five years imprisonment commencing 31 January 2019 and expiring 30 January 2024. I impose a non-parole period of three years and nine months commencing 31 January 2019 and expiring 30 October 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2019