R v Hunter

R v Hunter - [2021] NSWDC 375 - NSWDC 2021 case summary — Zoe

[4]

The Offences and Maximum Penalties

To facilitate the process I have adopted the course of quoting hereunder each of the counts on the indictment and the Form 1 charges as they appear in their respective Court Attendance Notices to reveal the particulars of each of the charges which the offender admits. The offences are:
Count One: "On or about 8 July 2004 at Campbelltown in the State of New South Wales did with intent to obtain for Cheryl Rea a financial advantage, namely $39,000 mortgage loan against the said Cheryl Rea's house, make a statement, namely an application to Community First Credit Union including supporting documents for the said mortgage loan which was false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular." Section 178BB(1)(b) Crimes Act 1900.
The maximum penalty for this offence is imprisonment for five years.
Count Two: "Between 2 June 2008 and 28 June 2008 at Campbelltown in the State of New South Wales did engage in a transaction with proceeds of crime being an electronic transfer and cheque payments totalling $109,212.74 from mortgage loan proceeds in circumstances where he knew that the mortgage loan proceeds were proceeds of crime." Section 193B(2) Crimes Act 1900.
The maximum penalty for this offence is imprisonment for 15 years.
To be taken into account when sentence is to be determined for this offence is an offence contrary to s 178BB(1) Crimes Act 1900 for which the maximum penalty is imprisonment for five years. The particulars of this offence are that: "Between 01/06/2008 and 30/06/2008 at Campbelltown he did with intent to obtain for Terrence Munro a financial advantage to wit $117,703.67 make a statement to wit a Community First Credit Union loan application which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular."
Count Three is in the following terms: "Between 1 April 2012 and 30 April 2012 at Campbelltown in the State of New South Wales did engage in a transaction with proceeds of crime, being cheque payments totalling $276,000 from mortgage loan proceeds in circumstances where he was reckless as to whether the mortgage loan proceeds were proceeds of crime." Section 193B(3) Crimes Act 1900.
The maximum penalty for this offence is imprisonment for 10 years.
Count four is in the following terms: "Between 19 December 2012 and 31 December 2012 at Campbelltown in the State of New South Wales did engage in transactions with proceeds of crime being transfers totalling $392,291.88 from mortgage loan proceeds in circumstances where he knew that the mortgage loan proceeds were proceeds of crime." Section 193B(2) Crimes Act 1900.
The maximum penalty for that offence is imprisonment for 15 years.
To be taken into account when sentence is determined for this offence is an offence contrary to s 254(B)(ii) Crimes Act 1900. The particulars of this offence are that: "Between 01/12/2012 and 30/12/2012 at Campbelltown did use a false instrument to wit loan application and identification documents in the name Grant Phillips to lodge a mortgage application with Suncorp Banking Group for the properties located at 35 Bruce Highway Edmonton, knowing it to be false intending to induce some person to accept it as genuine and because of it being accepted as genuine to obtain a financial advantage, to wit obtain a mortgage for those properties.
The maximum penalty for this offence is imprisonment for 10 years.
There is another offence to be taken into account in the assessment of sentence for count four. This contrary to s 10(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for two years and a fine of 20 penalty units. The particulars of this offence are: "On 09/11/2017 at Campbelltown did have in his possession a prohibited drug to wit 46 grams of cannabis."
There is no standard non-parole period specified for any of these offences for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1990."

[5]

The Timing of the Plea of Guilty

The offender pleaded guilty to the offences in the District Court on March 11, 2021 and from that date was remanded for the determination of sentence to May 14, 2021. For each offence I shall apply a discount of 15% for the utility of his plea of guilty to be applied to the sentence determined upon the synthesis of objective and subjective factors arising from the circumstances of the offending and the offender, including the extent to which he has demonstrated contrition and remorse.
The Crown acknowledges the utility of the pleas of guilty against the following history.
The offender was to be presented for trial upon an indictment with a significantly great number of counts, 14 in all, but successful negotiations resulted in the inclusion of two of those counts on Forms 1 to be taken into account in the determination of sentence for counts two and four respectively and others were abandoned. A third offence is added to the Form 1 relating to count four.
Upon the pleas of guilty to the counts on the present indictment the Director of Public Prosecutions directed that there would be no further proceedings in the remaining matters not including on the indictment or in the Forms 1.
The trial upon the entire array of offences charged in the first indictment was estimated to endure for ten weeks. In addition to the victim Cheryl Rea the original indictment required evidence from her son Grant Phillips and a friend who is embroiled in these transactions, Catherine Purdie. There were complications due to the breakdown of the friendship between Ms Rea and Ms Purdie and intellectual challenges of Mr Phillips impacting upon his capacity to offer evidence that he might have had to give.
Overall I accept the good sense in resolving this matter employing the structure adopted for its presentation. But at the same time it must be noted that the negotiation resulted in an agreed statement of facts crafted in terms favourable to the offender who did not give evidence before this Court, regardless of the inferences that might have been available demonstrate some greater extent of conduct upon which he engaged in the various transactions that have him before the Court.
It is not for the Court to determine what evidence ought to be offered. It must come to a decision upon what the parties have agreed should set the parameters of the facts and circumstances for which the offender faces punishment, with care to avoid speculation or resort to inferences which the parties have chosen not to have the Court act upon. To do otherwise would be in breach of the principles from the decision in R v De Simoni [1981] HCA 31.
The parties have advanced that the discount to be applied to the individual sentences should fall within 10% and 15% upon the synthesis of the objective and subjective facts before the Court. I have come to the decision to allow the offender a discount of 15%. The Crown reminded me of the guidance provided by Howie J in R v Borkowski [2009] NSWCCA 102 at [31].

[6]

Pre-Sentence Custody

The offender was held in custody for a significant period of time after his arrest which must be brought to account. For a period of time the offender was subject to stringent bail conditions which must also be brought to account. More particularly, he was arrested on November 9, 2017 and remained in custody for a period of 1,044 days until September 16, 2020 when he was granted bail.
The conditions of bail are set forth in a document provided on behalf of the offender. These are that he be of good behaviour, that he reside at an address in Holsworthy and report to the Liverpool Police each day between 8am and 8pm; that he appear at Court on 14 May 2021 and on such dates and at such other places thereafter required; that he not be absent from the address where he is required to live unless in the company of a woman whose name appears in the document, except as follows: 1. To report to police; 2. To appear at Court; 3. In the case of a medical emergency; 4. To attend any pre-arranged appointment with his legal representatives; 5. For periods no longer than 60 minutes to access, order or purchase nutritional, dietary or medical goods or serves.
He was not to attend upon any financial institution unless in the company of the aforementioned woman and not to attend upon any financial institution except for purposes of accessing for legitimate purposes banking services registered to him. He was not to have any contact in any way, except through his lawyers, with any person he knows to be a prosecution witness. He was to possess only one mobile telephone and must notify the officer in charge of police at Riverwood of the telephone number and the telephone IMEI number within 24 hours of his release or the telephone connection. He was not to engage in any encrypted communications or possess or use any encrypted application whatsoever. He was not to apply for a new passport or travel document and was to surrender any existing passport. He was not to go within 1 kilometre of any international point of departure from the Commonwealth of Australia. He was not to leave the State of New South Wales, and acceptable persons must enter into an agreement to forfeit the sum of $50,000 if he failed to appear in Court in accordance with his bail acknowledgment.
Significant conditions of bail were those which effectively imposed home detention requiring him to remain at the nominated address except on the occasion of the circumstances listed. I have, however, brought to account all of the conditions of bail and in addition to the 1,044 days of past custody. I have allowed him an additional 100 days bringing those periods to account.
The aggregate sentence I intend to impose today shall commence on March 27, 2018. The parties have not cavilled with this.

[9]

Form 1 Offence Attaching to Count Two

The conduct contrary to s 178BB(1) Crimes Act 1900 (obtain money by false and misleading statements) expressed in the charge which the offender askes to be taken into account in the assessment for sentence for count two was: 1. Between June 1, and June 30, 2008, 2. With intent to obtain for Terrence Munro $117,703.67, 3. Provided a Community First Credit Union loan application, 4. Which was false and misleading in a material particular, 5. With reckless disregard as to whether it was false and misleading in the material particular.
The facts which the offender acknowledges for the purposes of sentencing include: 1. On June 2, 2008 "the accused was aware" of a third loan application in the victim's name with Community First Credit Union for $117,703.67 plus fees and insurance. 2. Four documents were provided with signatures purporting to be those of the victim. 3. The victim denies these signatures. 4. "The accused was aware" that the Community First - fact sheet of the documents provided falsely represented that the victim was employed by the nominated company for a period specified. 5. The victim was not ever employed by that company. 6. "The accused was aware" that two payslips provided in support of the application falsely represented the victim's employment by the company named. 7. The victim was never employed by that company. 8. The loan application included a notice of valuation over the victim's home of which the victim was not aware. 9. The loan application included a letter to "Terry" at a real estate agency referring to a rental appraisal of the victim's home of which the victim was not aware. 10. "The accused was aware" of a document from Susanne McPherson dated 8 April 2008 misrepresenting she was the victim's stepmother with whom the victim would be living free of charge. 11. "The accused was aware" that a document from Terry Pfeiffer Real Estate Pty Ltd misrepresented that they were appointed to manage the victim's property. 12. There was no such appointment by the victim who had not offered her home for rental at all.
There is no indication of who lodged the documents or from what factual circumstances the offender "was aware" of the loan application and the other facts of which he is said to have been aware. There is no indication of the circumstances of a second loan application or the details of that facility, which upon the description given must have preceded the third loan application with this credit union.
This portion of the agreed facts does not include any of the particulars of the relevant loan account or other account details. There is no reference here to the distribution of the monies loaned in response to the application. There is no further information regarding the person Terrence Munro.

[10]

Count Two

The conduct contrary to s 193B(2) Crimes Act 1900 (knowingly deal with the proceeds of crime) expressed in the charge to which the offender pleaded guilty was: 1. Between June 2, and June 26, 2008. 2. The offender engaged in the electronic transfer of $109,212.74. 3. From mortgage loan proceeds. 4. The offender knew the mortgage loan proceeds were the proceeds of crime.
The facts which the offender acknowledges for the purposes of sentencing include: 1. Upon the day when the loan was subject of a Form 1 offence attaching to this count was funded $21,212.74 was transferred from a loan account identified as L29.1 to a loan account identified as L83. 2. Loan L83 is the loan the subject of count one. 3. The transfer of $21,212.74 repaid the outstanding amount of that loan. 4. The remaining balance of $88,787.26 was transferred to the victim's extant Community First Credit Union loan reference number 669499-S7. 5. A Community First Credit Union cheque book was issued in the victim's name. 6. On June 10, and June 13, 2008 cheques for $18,000 and $25,000 respectively were drawn payable to T Munro and paid into a St George Bank account operated by the offender. 7. On June 17, 2008 a cheque for $15,000 was deposited into Commonwealth Bank loan account 508981401 operated by the offender. 8. On June 23, 2008 a cheque for $10,000 payable to St George Bank was deposited into a St George account operated by the offender. 9. On June 26, 2008 a cheque for $20,000 payable to T Munro was deposited into a St George Bank account operated by the offender. 10. The total value of these cheques was $88,000.
In the absence of sufficient information in the agreed facts I sought further assistance in the course of submissions upon which it is now understood that the loan the subject of count one on the indictment has the reference number 669499-L83.
Aside from the use to which it was put, the connection between the sequence of conduct from which the charges are brought and the loan with the reference number 669499-S7 remains unclear. There is no information relied on regarding the creation of that loan, by whom it was arranged, when it was arranged, or for what purpose.
The Crown case is said to be that the offender ordered the cheque book in the victim's name but concedes that there is no evidence of this order or request by the offender. This appears to be an acknowledgement that there is no direct evidence. But in light of the use to which the cheques were put to access these funds, there would I expect to be evidence of circumstances from which the conclusion that he did so could be supported. As this is not asserted in the document I put that consideration to one side.
There is no information offered regarding the person T Munro and if someone other than the offender what connection is between them. What is clear however is that from this loan from which count two and the Form 1 offence arise is that the offender benefited to the extent of $88,000 from these transactions. The precise nature of the use to which the funds were put is not explained.
The further agreed facts for sentence address count two in para (a) in that document: "In relation to count 2, the dealing relates to knowing the third loan (agreed facts para 5) was used to pay out loan 2 (agreed facts para 2-4). The second aspect of count 2 is the dealing whereby $88,000 was deposited into accounts operated by the accused (agreed facts para 4-19)."
Before the conduct found in count three the following occurred: 1. In early 2009 the victim told the offender of her recent separation of her partner of ten years and her concern that he might be entitled to the share of the value of her home. 2. The offender advised upon the option of transferring the home to her son, Grant Phillips, to thwart any such attempt. 3. The victim was the carer for her son challenged with impaired mental health. 4. Shortly after the offender confirmed his advice and informed the victim he had transfer papers for signature for this purpose. 5. The victim and her son met the offender and she signed a transfer reference number AE840834J, parts of which were blank, though it nominated her as transferor and her son was transferee. 6. The transfer was lodged and affected whereupon her son became the registered proprietor of that property. 7. About that time the offender loaned Grant Phillips some money so he could purchase a car and accompanied him to Suncorp Bank at Campbelltown to assist him to open an account number 0151328701 into which the offender could transfer the money. 8. Grant Phillips established his identity using a proof of age card, Medicare card and an OH&S certificate card. 9. On June 3, 2010 the offender transferred title the two units at 35 Bruce Highway, Edmonton, Queensland into Grant Phillips' name without Mr Phillips knowledge using the aforementioned identity documents. 10. In late 2011 or early 2012 the offender contacted the victim and told her that legislation providing for Lands Titles in family names was changed leaving potential for her former partner to pursue a claim over her property. They met a few days later. He was accompanied by another person she thought was a solicitor. 11. The offender advised that the property should be transferred from her son's name to a close friend outside of the family unit. Her friend, Catherine Purdie, agreed to accept this role. The offender was advised that she would do so. 12. All three met. The offender asked Ms Purdie to provide a copy of her birth certificate, pay advices and other identification documents. The offender produced a loan application form from Macquarie Bank and advised that the loan was required to provide the arrangement with legitimacy for the title to transfer the loan to be repaid immediately after the transfer. 13. Ms Purdie signed the loan application and contract for sale, most of which was incomplete.

[11]

Count Three

The conduct contrary to s 193B(3) Crimes Act 1900 (recklessly deal with the proceeds of crime) expressed in the charge to which the offender pleaded guilty was: 1. Between April 1, and April 30, 2012. 2. The offender engaged in a transaction with the proceeds of crime, 3. Being cheque payments totalling $276,000 from mortgage loan proceeds, 4. Reckless as to whether the mortgage loan proceeds were proceeds of crime.
The facts which the offender acknowledges for the purposes of sentencing include: 1. Between February 10, and April 23, 2012 a loan application "was submitted" to Macquarie Bank for a mortgage loan of $276,000. 2. The mortgage was over the victim's property. 3. The loan application included a customer checklist purportedly signed by Ms Purdie but not signed by her. 4. The loan application included a mortgage AG951484Q purportedly signed by Ms Purdie but in fact not signed by her. 5. The document was purportedly witnessed by another person who in fact did not witness the document. 6. The application was approved, loan number 1859-5251, and the entirety of the money was distributed, 1. $202,309.59 by cheque to Mr G Phillips into Suncorp account 09820-7749 on 23 April 2012. 1. $73,292.41 by cheque to Grant Joseph Phillips Bank of Queensland account 2150-0582. 2. $398 by cheque to Master Real Estate.
The offender was reckless as to whether the loan money disbursed was proceeds from the mortgage loan.
In the period of the 12 months following the offender transferred money to Macquarie Bank loan account number 1859-5251 to meet the repayments. There is no charge before me in respect of the fraudulent conduct leading to the grant of the loan and nothing to indicate he submitted the loan application.
The further agreed facts for sentence addressing count three assert: "b) In relation to count 3, the dealing is as set out in paragraph 38. In paragraph 37(a) Suncorp Bank account 09820-7749 was set up without Grant Phillips knowledge or consent. There are no charges in relation to the opening or operation of this account. In relation to paragraph 37(b), Bank of Queensland account 2150-0582 was set up without Grant Phillips or consent. This account is also referred to in relation to count 4."
After the conduct found in count three the following occurred: 1. The offender ceased to payments to the Macquarie Bank loan account 1859-5251 in December 2013. 2. Neither the victim nor Ms Purdie knew of the existence of this loan. 3. Macquarie Bank sent numerous letters to Ms Purdie received at the victim's home. 4. The victim contacted Ms Purdie the letters informed her that the loan was in arrears. 5. The offender ceased payments after October 14, 2015 [1] , leaving the account in arrears and prompting many notices to Ms Purdie at the victim's home. 6. In early to mid-2014 Macquarie Bank contacted Ms Purdie about the arrears and she in turn contacted the victim over the outstanding mortgage payments. 7. The victim contacted the offender who told her not to worry, to leave it with him and that the loan would be repaid in full shortly. The victim made further contact with the offender when further notices were issued to Ms Purdie by the bank and each time the offender undertook to fix the problem. 8. In the two months following further notices were received by Ms Purdie. The victim commenced making payments using money borrowed from her sister. The victim, on multiple occasions, attempted unsuccessfully to contact the offender who eventually responded and told her he would go to the bank and sort it out and that the bank must have it wrong. 9. Toward the end of 2014 Ms Purdie and the victim met with the offender at a hotel and confronted him. He asked for eight weeks after which the house would be restored to the victim's name and the mortgage discharged. The victim threatened to involve the police. 10. A week later the offender contacted the victim and met her at Cronulla. 11. The victim continued making payments on the loan to avoid the house being sold by the bank. The offender transferred money each week to the victim. 12. In March 2014 the offender told the victim he could not continue making payments. Shortly after she was contacted by a person known to her as Chris who told her the offender was in gaol. Chris made payments while the offender was in custody. 13. The victim contacted a solicitor in October 2016 and in November 2016 the police investigation commenced.
Item (e) above specifies that the offender ceased making payments after October 14, 2015, but it does not align with item (a) which specifies that the offender ceased payments to the Macquarie Bank loan account in December 2013. It is unclear whether there were two occasions when the payments were stopped or there is an error in the statement of facts as to the date.
The timeline embraced in item (f) in early to mid-2014 is difficult to assimilate. The money transferred to the victim according to item (k) having been paid by the offender is not quantified. The person Chris referred to in item (l) is not further identified.

[12]

The First Form 1 Offence Attaching to Count Four

The agreed statement of facts incorrectly identifies the provision for this offence as s 254B para (ii) Crimes Act 1900. It should be expressed s 254(b)(ii).
The conduct contrary to s 254(b)(ii) Crimes Act 1900 (use false instrument with intent to obtain financial advantage) expressed in the charge which the offender asked to be taken into account in the assessment of sentence for count four was: 1. Between December 1, and December 30, 2012, 2. Use of a false loan application and identification documents in the name of Grant Phillips, 3. To lodge a false mortgage loan application with Suncorp Banking Group, 4. In respect of the units at 35 Bruce Highway Edmonton, 5. Knowing it to be false, 6. Intending to induce some person to accept the application as genuine, 7. To obtain a mortgage over those properties.
The facts which the offender acknowledges for the purposes of sentencing include: 1. In early December the offender "was aware" of an application for a loan of $223,430 with Suncorp Bank in the name of Grant Phillips. 2. The offender "was aware" that the nominated purpose was to consolidate debts and the renovation of the properties. 3. Grant Phillips was unaware that the properties were registered in his name. 4. The offender "was aware" that Grant Phillips identification documents were used in support of and as part of the loan application. 5. The offender "was aware" that the following documents were false: 1. A declaration from Mortgage Mediators representing that Mr Phillips income from the entity was $125,000 per annum, 2. A payslip representing Mr Phillips' position as marketing manager, 3. The address of Mortgage Mediators which was the address of Department of Housing and Accommodation, 4. A false post office box address for Mr Phillips. 1. The loan was granted and funds paid into Suncorp account number 035762863.
Once more the agreed statement of facts uses the phrase "was aware" without any further information to provide the facts and circumstances upon which the offender held that knowledge. The document does not attribute the offender with lodgement of the documents nor does it provide any information upon who did so.

[13]

Count Four

The conduct contrary to s 193B(2) Crimes Act 1900 (knowing deal with the proceeds of crime) expressed in the charge to which the offender pleaded guilty was: 1. Between December 19 and December 31, 2016, 2. The offender engaged in transactions with transfers totalling $392,291.88 from mortgage loan proceeds, 3. The offender knew these funds were the proceeds of crime.
The facts which the offender acknowledges for the purposes of sentencing include: 1. On December 20, 2012 the offender transferred $191,851.11 to Bank of Queensland account 21500582 which paid out the balance owing on that account. I earlier referred to an earlier distribution from the funds the subject of count three to that account. 2. Between December 19, and December 31, 2012 the offender withdrew a total of $371,291.88 from the Suncorp account number 035762863 and credited to it a total of $6,609.55. 3. In total the offender transferred from that account $371,291.88. 4. This included $5,335 transferred to three different bank accounts which the offender "was aware" were falsely opened in Mr Phillips name. 5. Between December 2012 and January 4, 2013 the offender transferred $14,000 from Bank of Queensland account 2150-0582 in the name of Mr Phillips across three transactions into National Australia Bank account number 14733694 in the offender's name. 6. In January 2013 the offender made two transfers from Suncorp account 035762863, total $7,000, into an account opened in Ms Purdie's name, Macquarie Bank loan account number 1859-5251.
The sum specified in item c) of $371,291.88 does not compare with the information that is offered regarding that account to which I earlier referred.
As described these transactions appear confusing and are difficult to reconcile and it is difficult to assess what sums were acquired to the offender's benefit.
The further agreed facts for sentence addressing count four assert: "c) In relation to count 4, of the $223,430 made available by the loan (the subject of Form 1, attached to count 4" $191,851.11 was transferred to pay out the balance of the Bank of Queensland loan account 2150-0582 (agreed facts para 53). Between December 2012 and 4 January 2013 $14,000 was transferred from Bank of Queensland loan account 2105-0582 into accounts in the offender's name (agreed facts para 55). In relation to count 4, the forensic analysis does not explain how the remaining funds were disbursed apart from the following: 1. $5,335 transferred to accounts that the accused was aware had been falsely opened in Mr Phillips name (agreed facts para 54); and 2) In January 2013, $7,000 transferred to Macquarie Bank account 1859251 (agreed facts para 56). d) The forensic accountant had access to 16 bank accounts, including accounts held in the names Hunter, Munro, Phillips, Rea and Purdie collated by the former OIC. f) The amount of $392,291.88 is derived by adding the withdrawal of $371,291.88 from account number 035762863; transfer of $14,000 from account number 21500582; and then the transfer of $7,000 from account number 053762863 together."
The sum of $392,291.88 I note is the sum specified in the particulars of count four. "g) In relation to flowchart 1, Suncorp home loan account number 09820-7749 (referred to in para (b) above is not the subject of any charges. h) Further in relation to flowchart 1, the amount $287,749.96 since debit was the balance owing on the Macquarie Bank loan as of 31 December 2016. Cheryl Rea has assumed responsibility for the mortgage, the amount of which has increased, and she continues to live at the property."
The flowchart provides particulars of a timeline of mortgages over the victim's property between 2001 and 2012.
First, in July 2001 to 2004, Cheryl Rea Community First Credit Union account 66499-L82, Property Pulse loan account $30,000 loan excluding fees. Account opened 27/07/200. Account closed 26/07/2004. On 26/07/2004 $30,000 transferred to Cheryl Rea Community First Credit Union account 669499-S7.
Next, July 2004 to June 2008, Cheryl Rea Community First Credit Union account 669499-L83, Property Pulse loan account $39,000 excluding fees. Account opened 26/07/2004, account closed 05/06/2008. On 26/07/2004 refinanced the previous loan balance account 669499-L82 of $12,572. 54 on 05/06/2008 $26,472.46 transferred to Cheryl Rea account 669499-S7.
Next, June 2008 to June 2009, Cheryl Rea Community First Credit Union account 66499-L29.1 (10015-7603), Property Pulse loan account $110,000 loan excluding fees. Account opened 05/06/2008. Account closed 19/06/2009. On 05/06/2008 refinanced the previous loan account 669499-L83 balance of $21,212.74. On 05/06/2008 $88,787.26 transferred to Cheryl Rea account 669499-S7.
June 2009 to April 2012, Grant Phillips account 09820-7749, Suncorp home loan $208,000 loan excluding fees. Account opened 19/06/2009. Account closed 23/04/2012. On 19/06/2009 refinanced the previous loan account 669499-L29.1 balance of $111,846.22. On 19/06/2009 $1,000 transferred to Cheryl Rea account 669499-S7 $90,533.36 cheque directed to Cheryl Rea on settlement in June 2009, bank trace unavailable.
April 2012 to 2017, account closure date unknown, Catherin Purdie account 1859-5251 Macquarie home loan, $276,000 loan excluding fees. Account opened 23/04/2017. Account closed not known. On 23/04/2012 refinanced the previous loan account 09820-7749 balance of $202,309.59. On 24/04/2012 $73,292.41 transferred to Grant Phillips line of credit facility, Bank of Queensland account 2150-0582 $287,747.96 debit balance owing as of 31 December 2016, finally account closure date unknown.

[15]

Victim Impact Statement

The victim impact statement was tendered by the Crown in the Crown bundle and read by the victim. The legislation providing for the reception of this material in its current form does not extend to this class of offence and thus recent amendments which provide for the steps required before it is received and the use to which it might be put by the sentencing Court do not apply. The present legislative scheme applies to proceedings commenced on or after May 27, 2018. These proceedings were commenced in 2017.
The former legislative scheme however does not apply either, s 27(2) Crimes (Sentencing Procedure) Act 1999 prior to amendment, though it was the case that consideration of such material may occur at any time after conviction and before the imposition of sentence. This does not preclude the operation of the common law which allows for the receipt of the material as evidence of the harm done to the victim by the offender's crimes: Porter v R [2008] NSWCCA 145 at [54], Siganto v The Queen [1998] 149 CLR 656 at [29].
However there are aspects of the statement read that extend beyond the scope of the agreed statement of facts upon which sentence is to be determined and care must be taken not to take into account those matters or circumstances that might aggravate the offending admitted to another level, The Queen v De Simoni ibid.
It is also relevant to note that the material was received by consent but was not under oath or affirmation and the offender had no opportunity to cross-examine the victim upon the assertions made or to have her restrict her representations to fall within the parameters of the agreed statement of facts.
The victim impact statement was marked exhibit B. The victim writes of her introversion into which she has fallen from being an outgoing person who enjoyed her social life. She suffers severe anxiety and depression and is medicated for both. She speaks of the destruction of a 25 year friendship with Cathy Purdie that can never be repaired. She is no longer in contact with her sister Caroline. The promises by the offender to pay out the loan and put things right never happened. Her sister has never forgiven her for being so ignorant or dumb to allow the offender to do what he embarked upon.
Her relationship with her current husband is strained. She has limited tolerance and snaps at him for no reason. This impacts upon her mind; he is the one that has thereby suffered. She is no longer patient or tolerant or confident. She no longer trusts people.
She accuses the offender of having used her status as a single mother struggling with her ex-partner. She accuses him of knowing that she had no formal knowledge of any financial institution and that he guaranteed that he could help her. She accuses the offender of having a business, Mortgage Mediators, which was all smoke and mirrors. She accuses him of having a bogus calendar, that there is no business registered in his name as he indicated on numerous occasions; in fact it is registered in the name of another person, a friend of his.
She wrote of the occasion when two large men attempted to enter her home and evict her on behalf of Macquarie Bank. She speaks of suicidal ideation and the fear of losing her house of 20 years and correspondingly her children's inheritance. She has two children, including her impaired son.
She and her husband have now incurred a debt of $365,000 on a house that she had owned, all the product of the fraudulent conduct by the offender. They are out of pocket by $350,000 in addition to having to pay legal fees, loan repayments made before the arrangement of the current loan, and transaction costs. The total loss to her is $700,000.
She writes of the impact when the Macquarie Bank loan went into arrears, of the choice she had to make between providing food and meeting payments. She accuses the offender of misusing her home as his own for his purposes. She asks rhetorically, how does she recover the money that she has had to lay out because of his deceit and who pays for retribution. At her age she anticipated that she would own her house and be financially secure, but all of that has been taken away. She is now burdened with debt into her later years of life. This document is completed and signed in the name C Rea.
I have taken note of the matters advanced in this document that fall within the agreed statement of facts. The opportunity was thus given to the victim to confront the offender with the impact of his crimes upon her at the time and for the balance of her life. What she has suffered is in my judgement well within the range of distress that one in her position might endure from this conduct. The Court has been given insight into the extent of the harm suffered to her which, upon the material before the Court, does not appear to be appreciated by the offender when one looks at the sentence assessment report to which I shall refer.
I do not take into account the content of the victim impact statement in aggravation of the offending or the sentences to which I find the offender is justly exposed. The harm does not stop there however, but extends to the community for there was the impact upon the financial institutions who acted upon the fraudulent conduct, including the risks they and their insurers might have faced through failure to meet the commitment to discharge the debts because of these transactions.

[16]

The Offender

The offender was born in 1953 and thus turned 68 years of age this year. He has an extensive record of antecedents beginning in 1975 in New South Wales and in other States. In addition to the past four offences he has been before the Courts for the following: Carnal knowledge once, street offences three times, resisting arrest three times, mid-range PCA three times, driving under the influence once, driving whilst disqualified four times, failing to appear once, assault once, driving whilst license cancelled once, stating false name and place of abode twice, unlawful possession of a license once, dealing with property suspected to be the proceeds of crime twice, possessing a prohibited drug three times, supply prohibited drug twice, with responsibility for a vehicle failing to disclose the identity of the driver once.
In New South Wales he was charged in various names, these are: Terry Hunter, Terrence Hunter, Terry Jeffrey Hunter, Terry Geoffrey Hunter, Terrence G Hunter, Terry George Hunter, Terrance Geoffrey Hunter, Geoffrey Terrance Hunter, Terry Jones, Terrence G Hunter, Terrence Geoffrey Hunter, Terrance Geoffrey Hunter, Gregory John Peters.
The fraud offences accumulated by the offender in New South Wales, Western Australia, South Australia and for Commonwealth offences are set forth in the antecedent records provided from each of those jurisdiction, helpfully compiled in a table which has been added to the Crown bundle exhibit A.
The chronology of these offences begins on 11 July 1984 in New South Wales with 12 counts of imposition; on 16 March 1984 obtaining financial advantage by false statement; on 25 February 1997 in New South Wales making a false statement to obtain an advantage by nine counts of that charge; on 26 February 1997 making a false statement with intent and custody of a false instrument; and on 22 August 1997 obtaining money by deception.
On various dates between 19 September 1997 and 14 October 1997 in South Australia, aid and abet opening an account with a cash dealer in a false name 12 counts; on various dates within that same period aid and abet operate account with a cash dealer under a false name 11 counts; on various dates within that same period again in South Australia, aid and abet open account with a cash dealer in a false name 14 counts, and aid and abet operate account with a cash deal in a false name 13 counts.
On various dates between 20 June 1997 and 22 July 1997 in Western Australia 10 counts of fraud.
On 14 August 2009 in New South Wales dealing with the proceeds of crime two charges, and on various dates between 5 September 2004 and 14 September 2004 in South Australia receiving a benefit himself or a third person three counts.
Lest it be thought that I double counted, I refer to the dealing of property suspected to be the proceeds of crime in the table of offences in New South Wales that were not offences of fraud.
The sentence assessment report was written on 12 May 2021. The author had the benefit of interviews with the offender at the Sutherland Community Corrections, contact with his friend, a perusal of a medical certificate of 2 May 2021, police facts and criminal histories from New South Wales, South Australia and Western Australia and Corrective Services records. He is currently living with his older sister at her home in Holsworthy. He is a divorced man. He is providing assistance and care to his sister. He has two adult children with whom he has infrequent contact. He recalled prior employment as a mortgage broker and is currently in receipt of the old age pension.
The section dealing with factors relating to the offending has the following: "Mr Hunter presents as an individual with multiple aliases and convictions related to drug, alcohol and fraud offences from across several Australian States."
Beneath the heading "Attitudes": "Mr Hunter described his actions as common during that time when brokering finance. Mr Hunter displayed minimal insight into his offending behaviour when he described his actions as a cultural problem contained within the finance sector."
He described smoking cannabis regularly during the time of his offence.
Beneath the heading "Financial": "Mr Hunter claimed not being financially motivated by the offences, stated he committed the offences because he wanted to help people applying for finance."
Beneath the heading "Insight into Impact of offending": "Although Mr Hunter was aware of the impact he had on both his customers and the lending institutions he had defrauded, he appeared to minimise his actions by stating that all the loans approved had insurance attached to cover the loans in the case of default."
He spoke of being willing to undertake intervention. He is willing to undertake Community Service work. He has in the past responded satisfactorily to supervision. He is assessed with a medium to low risk of re‑offending according to the Level of Service Inventory - Revised (LSI-R). There is no analysis of the facts and circumstances which have led to that conclusion in the report and it faces challenge from the extent of the offending with which this Court is concerned and his antecedent record of misconduct, however I note his age and that may well have impacted significantly upon the assessment. It is probable that in the time that he has left in his life opportunity to embark upon conduct of like nature will be somewhat limited.
The offender did not give evidence and I assess the extent of his contrition and remorse and explanations for the conduct upon which he engaged upon the consideration of the documents only. There is no reference to documents tendered in his case to any representations by him regarding his circumstances or the motivation for his offending, though it is noted in the sentence assessment report there are attributions which do not assist him. I have not overlooked his expressed motivation to assist people obtaining finance.
The documents tendered in his case include a personal reference from Sonny Faulds. This writer provides the document in support of the offender, aware of the charges and his history of fraudulent conduct. He pledged bail for his release to his residence on 16 September 2020 after the period on remand.
Whilst living at the residence he was helpful in assisting a 23 year old daughter come to terms by having her relocate from Sydney with the author to Tweed Heads. The daughter is now under a mental health plan and there is reference to her unfortunate history in the course of which the offender on an occasion intervened to disarm the girl who had taken a large knife. There is apparently history of such harm being caused to the author of this report by this girl.
There is an Emergency Department discharge referral recording his attendance at the hospital with polyuria and polydipsia within the context of a new diagnosis of Type 2 diabetes. He was advised with regard to this. He presented with impaired renal function due to dehydration, which was rectified, and he was discharged with medication.
There was also material from the Law Enforcement Conduct Commission which is more cryptic than illuminating, but it appears that at some point on behalf of another he made a complaint concerning the conduct of a police officer which generated an investigation by that body, and which led to a recommendation that the Commissioner of Police should give consideration to the taking of "unrevealed" action against that officer pursuant to a provision in the Police Act.
There is also some material from the Department of Home Affairs responding to a letter he wrote advising that if the subject of the letter wanted an authorised representative, further steps were required, and a copy of an appropriate form was attached for the offender's convenience.
There is a medical certificate certifying that he is suffering from the earlier diagnosed diabetes for which his is being treated. This was completed on 2 May 2021. Type II diabetes is a matter that can have profound sequelae if not properly managed and it was put to me that in custody the offender might have some difficulty in receiving the medication he requires. The paperwork accompanying him should include my recommendation that he be assessed and managed for this condition.
The material to which I have referred was provided to support the argument that the offender is the type of person that helps others, which is said to explain his misconduct and the commission of these offences, particularly the offence charged in count one. In the absence of direct evidence of this from the offender or others who might attribute him with that explanation, such as in the sentence assessment report, the Court is left to consider the weight to be given to this explanation against the agreed facts upon which sentenced is to be determined. The circumspection required of a sentencing Court in these circumstances is well-known. In R v Qutami [2001] NSWCCA 353 Smart AJ wrote of the need for such circumspection, noting that although evidence in such a form in sentence proceedings is admissible, evidence tendered in this form impacts upon the weight to be attributed to whatever representations might be attributed to the offender. More recently in Imbornone v R [2017] NSWCCA 144 Wilson J wrote at para 57 of the care required in attributing weight to untested representations by an offender; her Honour itemised the principles in five sub paragraphs, noting finally that in the absence of any independent verification of the asserted behaviour or state of mind or of a tangible expression of contrition, "To treat this evidence with anything but scepticism would represent a triumph of hope over experience". R v Harrison [2001] NSWCCA 79 is cited.
The attributions to which these statements apply are confined to those offered regarding the claimed altruistic purposes behind the offender's misconduct and his general disposition as someone who is ever willing to assist others in the pursuit of which, in his case, he simply followed what practices and usages were extant in the finance industry in which he had engaged. The problems within that industry have attracted wide publication as a result of the Royal Commission identifying the deficiencies and misconduct recently completed.

[17]

Submissions

The Crown provided written submissions upon which I expressed my compliments when the matter first came before me. So to in the case of Mr Keller, who provided succinct submissions reminding me of the nature of the charges, the maximum penalties, the relevant provisions s 3A and s 5, Crimes (Sentencing Procedure) Act 1999. He noted that the offender's role included the rollover nature of the mortgage loans obtained. The submission went that there was no requirement to make a distinct finding of above, mid or low range. It was conceded that all frauds involving real estate bank loans require a level of planning, sophistication and fault by others.
Counts one and two were less serious than an offence where the offender obtained the most benefit but not the lowest level as count three where the financier was paid out. The offender did not benefit to any significant degree. Of lesser seriousness but also not the lowest, in count four, the finances were paid out. This does not include reference to the burden that has been imposed upon the victim as a result of these transactions to which I have referred.
The aggravating factors of prior record and conditional liberty are noted. The conditional liberty was the subject of other proceedings and has been dealt with. The prior record of dishonesty is an aggravating factor but not so as to increase the objective seriousness of these offences or the sentences otherwise to be imposed. Mitigating factors include the guilty plea. It is also suggested that there is evidence of remorse and contrition. There are prospects of rehabilitation and there is other subjective evidence reflected in the documents tendered.
I am reminded of the effect of the decision in Attorney General's Application No.1 of 2002 [2002] NSWCCA 518 reported at (2002) 56 NSWLR 147. Guidance was there provided by Spigelman CJ informing of the significance of Form 1 offences and how they should be brought to account. I am reminded of the principles relevant to special circumstances and I am urged to make a finding in those terms. I agree that there are special circumstances and there will be a reduction in the custodial component of this sentence with a longer period on parole, bearing in mind the offender's age and the Type II diabetes with which he is afflicted.
The Crown submissions noted that it is difficult to find comparative cases against which to assess a range of sentencing options and that one needs to consider the general sentencing principles and the maximum penalty specified rather than to look for a comparable example of misconduct. Each case must be assessed upon its own particular facts and circumstances. One needs to consider the maximum penalty for the offence, the amount of money involved and motivation, time over which the offences were committed, the degree of planning and sophistication, and any accompanying breach of trust. Some of those matters appear as aggravating factors in s 21A(2), Crimes (Sentencing Procedure) Act 1999 but I do not bring them to account as such. They are implicit aspects of the misconduct upon which the offender engaged and I have simply brought them to account within the factual matrix upon which I am determining sentence.
The Crown dealt with each charge individually.
First of all in respect of count one the amount of money involved was $39,000. The financial institution is identified. Plea of guilty is noted. The offence was committed on or about 8 July 2004. Planning and sophistication in the commission of the offence was noted. Because false documentation was provided with the loan application there was an accompanying breach of trust. I agree with the Crown submission that this offence falls towards the low mid-range of offences of this type.
Count two the amount involved is $109,212.74. The institution is identified. The date range is identified. Planning was involved with some sophistication. The proceeds of crime were used to pay off the loan the subject of count one and pay cheques on five occasions into bank accounts operated by the offender. There was some accompanying breach of trust by reason of the relationship between the offender and the victim. This falls within mid-range of offences of this type, a submission with which I agree.
Count three is the offence involving $276,000. The institution is identified. The date range and nature of the conduct; the planning and sophistication involved, which included the representations made when he contacted the victim to advise her that her home should be transferred to someone outside the family. The entirety of the loan was disbursed by three cheques one of which was paid to the Bank of Queensland account. Also there was some accompanying breach of trust. The offender transferred enough money into the loan account to meet the loan repayment obligation for 12 months but in December 2013 he ceased making the repayment.
Therein I would note that the error in the agreed statement of facts appears to have been 2015 and if called upon to review this judgement I shall make note of that adjustment [2] .
The history of that offending is noted including payments made by the person Chris and ultimately the need for the victim to borrow money from her sister to continue repayments to obviate the risk that the bank would exercise its right of sale over her house. I agree that this is within the mid-range of offences of this type.
Count four is then discussed including the amount $392,291.88. The planning and sophistication is noted. The period of the transfers extended over four years with the money transferred into accounts operated in Mr Phillips' name and Ms Purdie's name. Again I agree this falls within the mid-range for offences of this type.
The Crown reminds me of aggravating features: s 21A(2)(d) Crimes (Sentencing Procedure) Act - his record. S 21A(2)(i) of the Act, that the offences were committed whilst he was on conditional liberty. I have already commented upon that. S 21A(2)(k) of the Act, the breach of trust, but I do not bring that to account as an aggravating factor against the risk of double counting. S 21A(2)(n) of the Act, the amount of planning involved. Again I do not bring that to account as an aggravating factor against the risk of double counting. S 21A(2)(o) of the Act, financial gain, though I note this was an inherent element in each of the offences and I have taken this into account otherwise.
Mitigating fact and features identified as relevant are s 21A(3)(g) of the Act, the likelihood of re-offending. The Crown correctly observes there is no material tendered assessing the likelihood of re-offending other than what appears in the sentence assessment report. Prospects of rehabilitation - I am guarded with regard to the assessment of that. S 21A(3)(k) of the Act, plea of guilty is noted, assisted with the history of the proceedings up until the point of the trial with the utilitarian value that I have assessed. I am reminded of the effect of the Form 1 offences and the extent of misconduct involved.
Nothing was said on behalf of the offender regarding the time taken for this matter to be brought to final resolution in the Court and I agree that in the circumstances of this matter when the offender persisted along the path he took delay is not such that it ameliorates the sentence to be imposed.
Although it appears difficult to define precisely the full extent of the monetary benefit the offender derived from his misconduct, there was at least no insignificant loss suffered by the victim through the transactions which were orchestrated in what the offender's counsel described as the rollover of financial arrangements in the course of which the preceding loan arrangements were discharged in part or entirely with the proceeds of subsequent facilities.
The use to which he put the money to his benefit is not known, but there can be no finding but that he had the benefit of those funds. This however does not define the extent of the offender's misconduct, for the consequences are not confined to monetary loss to the victim but extend beyond the direct imperilment of her financial circumstances, to her reputation with lending institutions that might suffer and deny her opportunities for future borrowing.
He put at risk the retention of her home in which her intellectually impaired son lived and brought the burden of debt that she did not expect to have but has undertaken in later life to compensate her sister for the assistance she gave after the offender's crimes.
The harm to the community includes what was put at risk for the lending institutions upon which these frauds were perpetrated and is a relevant consideration. The offender is a person who cannot call in aid of his case good character. I do not accept that the offender was motivated by the suggested altruism, his desire to help others. But were it so in respect of the first count this is not supported in the assessment to be made of the conduct upon which he subsequently engaged in the appropriation of funds that I have summarised.
I do not accept that he has proved that he is remorseful. S 21A(3)(i) in the Crimes (Sentencing Procedure) Act 1999 provides that remorse shown by an offender is a factor in mitigation: "but only if 1) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and 2) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)."
The offender provided no evidence to meet this burden and representations attributed to him in the sentence assessment report gainsay the suggestion that he is remorseful for the conduct upon which he is to be sentenced.

[18]

The Assessment of Sentence

The purposes for which a Court may impose a sentence upon an offender are expressed in s 3A Crimes (Sentencing Procedure) Act 1999 reflecting the common law principles that have evolved in this area of jurisprudence over the years. These are: 1. To ensure that the offender is adequately punished for the offence; 2. To prevent crime by deterring the offender and other persons from committing similar offences; 3. To protect the community from the offender; 4. To promote the rehabilitation of the offender; 5. To make the offender accountable for his or her actions; 6. To denounce the conduct of the offender; 7. To recognise the harm done to the victim of the crime and the community.
There must be adequate punishment for this misconduct. There must be appropriate weight given to the aspect of general deterrence and to some lesser weight perhaps to specific deterrence. The need to protect the community from the offender attracts limited weight in light of the offender's age. I am not confident of his prospects for rehabilitation on the material that I have, though I have structured the sentence hopefully to accommodate whatever prospects there might be as at the date of his eligibility for parole. He is being made accountable for his actions. They were serious criminal misconduct at the expense of other persons and the institutions upon which these transactions were imposed.
The conduct must be denounced and the sentence must recognise the harm done to the victim in each case. This brings me to the announcement of the sentences I accept as appropriate for the individual offences.

For count one the sentencing I select applying the discount of 15% is imprisonment for 1 year and 10 months.
Count two imprisonment for 5 years and 1 month.
Count three imprisonment for 3 years and 4 months.
Count four imprisonment for 5 years and 1 month.

I have taken into account the additional offences on the Form 1 in respect of count two and the Form 1 in respect of count four.
The additional offences brought to account and there has been an increase in these sentences that would have otherwise been imposed to reflect the need to denounce the conduct upon which the offender engaged to address the aspect of specific deterrence and reflect the community entitlement to have the Court bring to account this misconduct as part of the matrix of offences from which he engaged.
I intend to impose an aggregate sentence that shall comprise a non-parole period of 4 years and 3 months commencing on March 27, 2018 to expire on June 26, 2022. There is a head sentence of 7 years and 6 months to expire on September 26, 2025. The offender will be eligible for parole at the expiration of the non-parole period.
I direct that the papers that accompany him shall include a copy of exhibit 1 tendered in his case and I shall make that available to be put with the papers that will accompany him into custody this afternoon. I will have the papers endorsed to recommend that he be assessed upon his admission for the treatment and management required of the Type II diabetes with which he has been recently diagnosed. The exhibits shall remain on file for such a period as the parties might require.

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Cases Cited (8)